FIVE THINGS ABOUT Article 370 ONE OUGHT TO KNOW

Date: 01/06/2014

After many leaders of the BJP and the Congress have come to comment about the practicality of Article 370 pertaining to the state of Jammu and Kashmir, here are five core points you should know about it. Pandit Jawaharlal Nehru's close aide Gopalaswami Ayyangar defended the incorporation of this article, saying India had been at war with Pakistan over Jammu and Kashmir, and though there was a ceasefire, it was necessary due to "unusual and abnormal" conditions. No state in the country has its own constitution except for Jammu and Kashmir, which follows the Ranbir Penal Code instead of the Indian Penal Code.

1) The law states that any law passed by the Parliament of India cannot be enforced in the state of Jammu and Kashmir without the approval or concurrence of the State Assembly. The authority of the Parliament to make laws for the state is limited to the Union and Concurrent list, only after consultation with the state assembly. Except for Defence, Foreign affairs and communication, the Parliament needs the approval of the state assembly to make any laws.

2) The article gives the residents of the state the status of Permanent Residents in the State Constitution. Under this clause,"The wife or a widow of the State Subject … shall acquire the status of her husband as State Subject of the same Class as her Husband, so long as she resides in the State and does not leave the State for permanent residence outside the State." However in October 2002, a bench at the Jammu and Kashmir High court held that a daughter of a permanent resident does not lose her status even though she marries someone who is not a permanent resident. She will enjoy all rights including that of succession. People who live outside the state of Jammu and Kashmir cannot purchase land in this state.

3) Clause 3 of Article 370 states "The President may by public notification can declare that this article shall cease to be operative or shall be operative only with exceptions and modifications which are provided by the state assembly." In short, the article can be revoked only if the constituency assembly of Jammu and Kashmir agrees to recommend the same. However, as Amitabh Mattoo states in The Hindu, "This could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended." Thus, any step taken by the Union would be futile.

4) One of the main reasons for the inclusion of this article was giving the state an autonomous status. But over the years, a number of Presidential orders have made changes to the article and in turn many Union laws are applicable to the state. The only significant differences with other states are, permanent resident status and their rights, the irrelevance of the Emergency provisions in the state due to "internal aggression" and the name and boundaries of the state all of which cannot be altered without the consent of the state assembly.

5) BR Ambedkar, the chief architect of the constitution also expressed his disapproval to this article as he said, "You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India. But Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal, would be a treacherous thing against the interests of India and I, as the Law Minister of India, will never do it." Even though Sardar Patel was unconvinced with the Article and the fact that even though a state would become a part of India, it would not follow the fundamental rights and directive principles of state policy, he helped Ayyangar to make sure that Article 370 was incorporated in the Constitution.